Nos. 14-556, 14-562, 14-571, 14-574
In The Supreme Court of the United States
—————————
JAMES OBERGEFELL, ET AL.,
Petitioners,
v.
RICHARD HODGES, DIRECTOR, OHIO DEP’T OF HEALTH, ET AL.
VALERIA TANCO, ET AL.,
v.
Respondents.
Petitioners,
BILL HASLAM, GOVERNOR OF TENNESSEE, ET AL.,
APRIL DEBOER, ET AL.,
v.
Respondents.
Petitioners,
RICHARD SNYDER, GOVERNOR OF MICHIGAN ET AL.,
GREGORY BOURKE, ET AL.,
v.
Respondents.
Petitioners,
STEVE BESHEAR, GOVERNOR OF KENTUCKY, ET AL.,
—————————
Respondents.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SIXTH CIRCUIT
—————————
BRIEF OF AMICI CURIAE
NATIONAL WOMEN’S LAW CENTER,
WILLIAMS INSTITUTE SCHOLARS OF SEXUAL
ORIENTATION AND GENDER LAW, AND
WOMEN’S LEGAL GROUPS IN SUPPORT OF
PETITIONERS
—————————
EMILY J. MARTIN, Counsel Of Record
MARCIA D. GREENBERGER
ELIZABETH JOHNSTON
NATIONAL WOMEN’S LAW CENTER
11 Dupont Circle NW, Ste. 800
Washington, DC 20036
(202) 588-5180
emartin@nwlc.org
Counsel for Amici Curiae
(Additional Counsel Listed on
Inside Cover)
NAN D. HUNTER
THE WILLIAMS INSTITUTE
UCLA SCHOOL OF LAW
Box 951476
Los Angeles, CA 90095-1476
(310) 267-4382
BARBARA B. BROWN
STEPHEN B. KINNAIRD
PAUL HASTINGS LLP
875 15th Street, N.W.
Washington, D.C. 20005
(202) 551-1700
JENNIFER S. BALDOCCHI, Partner
JEFFREY S. HABER, Partner
BETSEY BOUTELLE
PETER T. BREJCHA
COURTNEY T. DETHOMAS
JENIFER Q. DOAN
MICHAELA DUDLEY
REBECCA D. FARBER
CAMERON W. FOX
AMANDA L. FRETTO
BRIDGET A. GORDON
SCOTT M. KLAUSNER
JUDITH M. KLINE
DAVID B. LYONS
ASHLEY N. MAYS
ELEANOR K. MERCADO
BRIAN P. MORAN
BETH C. MUELLER
SEAN M. SMITH
MOR WETZLER
MISTY WRIGHT
PAUL HASTINGS LLP
515 South Flower Street, 25th Floor
Los Angeles, CA 90071
(213) 683-6000
-iTABLE OF CONTENTS
Page
I.
II.
III.
INTEREST OF AMICI CURIAE...................... 1
SUMMARY OF ARGUMENT .......................... 2
ARGUMENT .................................................... 4
A.
This Court Adopted Heightened
Scrutiny for Laws That
Discriminate Based on Sex
Because Such Laws Are Typically
Based on Gender Stereotypes ............... 8
B.
C.
Laws That Discriminate Based on
Sexual Orientation Should Be
Subject to Heightened Scrutiny
Because of Their Frequent Basis
in Gender Stereotypes ......................... 13
1.
Sexual Orientation
Discrimination Is Rooted in
Gender Stereotypes .................. 14
2.
Government Action That
Discriminates Based on
Sexual Orientation
Warrants Heightened
Scrutiny ..................................... 21
Laws Excluding Same-Sex
Couples From Marriage Cannot
Survive Heightened Scrutiny ............. 26
1.
Heightened Scrutiny Has
Been Key to Dismantling
Sex-Specific Marriage Laws
That Once Enforced Gender
Stereotypes ............................... 27
-iiTABLE OF CONTENTS
(continued)
2.
IV.
V.
Page
Like Other Marriage Laws
Enforcing Gender-Based
Expectations, Laws
Excluding Same-Sex
Couples From Marriage
Cannot Survive
Constitutional Scrutiny ............ 30
CONCLUSION ............................................... 34
APPENDIX ..................................................... 1A
-iiiTABLE OF AUTHORITIES
Page(s)
Cases
Baker v. Astrue,
No. 0120110008, 2013 WL 1182258
(E.E.O.C. Jan. 11, 2013) ....................................... 20
Baskin v. Bogan,
766 F.3d 648 (7th Cir. 2014), cert.
denied, 135 S. Ct. 316 (2014) ............................... 23
Bishop v. U.S. ex rel. Holder,
962 F. Supp. 2d 1252 (N.D. Okla.),
aff’d on other grounds sub nom.,
Bishop v. Smith, 760 F.3d 1070 (10th
Cir.), cert. denied 135 S. Ct. 271
(2014) .................................................................... 23
Bostic v. Schaefer,
760 F.3d 352 (4th Cir. 2014),
cert. denied, 135 S. Ct. 308 (2014) ................. 23, 32
Bourke v. Beshear,
996 F. Supp. 2d 542 (W.D. Ky. 2014),
rev’d sub nom. DeBoer v. Snyder,
772 F.3d 388 (6th Cir. 2014),
cert. granted, 135 S. Ct. 1040 (2015)...................... 6
Bradwell v. Illinois,
83 U.S. (16 Wall.) 130 (1872) ................................. 9
Brenner v. Scott,
999 F. Supp. 2d 1278 (N.D. Fla. 2014) ................ 24
Caban v. Mohammed,
441 U.S. 380 (1979) .............................................. 33
-ivTABLE OF AUTHORITIES
(continued)
Page(s)
Califano v. Goldfarb,
430 U.S. 199 (1977) ........................................ 11, 28
Califano v. Westcott,
443 U.S. 76 (1979) .......................................... 12, 29
Campaign for S. Equal. v. Bryant,
No. 3:14-CV-818-CWR-LRA, 2014
WL 6680570 (S.D. Miss. Nov. 25,
2014)................................................................ 23, 24
Carrasco v. Sec’y of Health, Educ. &
Welfare,
628 F.2d 624 (1st Cir. 1980) ................................. 28
Castello v.Donahoe,
No. 0120111795, 2011 WL 6960810
(E.E.O.C. Dec. 20, 2011) ....................................... 21
Centola v. Potter,
183 F. Supp. 2d 403 (D. Mass. 2002) ............. 15, 18
Conde-Vidal v. Garcia-Padilla,
No. Civ. 14-1253 PG, 2014 WL
5361987 (D.P.R. Oct. 21, 2014) ............................ 24
Couch v. Chu,
No. 0120131136, 2013 WL 4499198
(E.E.O.C. Aug. 13, 2013) ...................................... 20
Craig v. Boren,
429 U.S. 190 (1976) ........................................ 10, 13
In re Crist,
632 F.2d 1226 (5th Cir. 1980) .............................. 28
-vTABLE OF AUTHORITIES
(continued)
Page(s)
Culp v. Napolitano,
No. 0720130012, 2013 WL 2146756
(E.E.O.C. May 7, 2013) ......................................... 20
De Leon v. Perry,
975 F. Supp. 2d 632 (W.D. Tex. 2014) ................. 24
DeBoer v. Snyder,
973 F. Supp. 2d 757 (E.D. Mich.
2014), rev’d, 772 F.3d 388 (6th Cir.
2014), cert. granted, 135 S. Ct. 1040
(Jan. 16, 2015) ................................................. 7, 33
Doe ex rel. Doe v. City of Belleville, Ill.,
119 F.3d 563 (7th Cir. 1997), vacated
and remanded on other grounds, 523
U.S. 1001 (1998) ................................................... 15
Frontiero v. Richardson,
411 U.S. 677 (1973) .......................................passim
Glenn v. Brumby,
663 F.3d 1312 (11th Cir. 2011) .............................. 2
Goesaert v. Cleary,
335 U.S. 464 (1948), disapproved of
by Craig v. Boren, 429 U.S. 190
(1976) .................................................................... 10
Griego v. Oliver,
316 P.3d 865 (N.M. 2013) ..................................... 23
Griswold v. Connecticut,
381 U.S. 479 (1965) .............................................. 32
-viTABLE OF AUTHORITIES
(continued)
Page(s)
Heller v. Columbia Edgewater Country
Club,
195 F. Supp. 2d 1212 (D. Or. 2002) ..................... 17
Henderson v. Labor Finders of Va., Inc.,
No. 3:12-CV-600, 2013 WL 1352158
(E.D. Va. Apr. 2, 2013) ......................................... 15
Henry v. Himes,
14 F. Supp. 3d 1036 (S.D. Ohio 2014),
rev’d sub nom. DeBoer v. Snyder,
772 F.3d 388 (6th Cir. 2014),
cert. granted, 135 S. Ct. 1040 (2015)...................... 6
Hollingsworth v. Perry,
133 S. Ct. 2652 (2013) ............................................ 1
Hoyt v. Florida,
368 U.S. 57 (1961), overruling
recognized in J.E.B. v. Alabama ex
rel. T.B., 511 U.S. 127 (1994) ............................... 10
J.E.B. v. Alabama ex rel. T.B.,
511 U.S. 127 (1994) .......................................... 8, 13
Jernigan v. Crane,
No. 4:13-cv-00410 KGB, 2014 WL
6685391 (E.D. Ark. Nov. 25, 2014) ........................ 5
Johnson v. California,
543 U.S. 499 (2005) ................................................ 8
Kalina v. R.R. Ret. Bd.,
541 F.2d 1204 (6th Cir. 1976) .............................. 28
Kerrigan v. Comm’r of Pub. Health,
957 A.2d 407 (Conn. 2008) ................................... 23
-viiTABLE OF AUTHORITIES
(continued)
Page(s)
Kirchberg v. Feenstra,
450 U.S. 455 (1981) .............................................. 29
Kitchen v. Herbert,
961 F. Supp. 2d 1181 (D. Utah 2013),
aff’d, 755 F.3d 1193 (10th Cir.), cert
denied, 135 S. Ct. 265 (2014) ........................... 5, 23
Koren v. Ohio Bell Tel. Co.,
894 F. Supp. 2d 1032 (N.D. Ohio
2012)...................................................................... 17
Latta v. Otter,
771 F.3d 456 (9th Cir. 2014) .........................passim
Lawrence v. Texas,
539 U.S. 558 (2003) .......................................... 4, 25
Lawson v. Kelly,
No. 14-0622-CV-W-ODS, 2014 WL
5810215 (W.D. Mo. Nov. 7, 2014) .......................... 5
Love v. Beshear,
989 F. Supp. 2d 536 (W.D. Ky. 2014)..................... 6
Loving v. Virginia,
388 U.S. 1 (1967) .................................................... 6
Macy v. Holder,
No. 0120120821, 2012 WL 1435995
(E.E.O.C. Apr. 20, 2012) ....................................... 19
In re Marriage Cases,
183 P.3d 384 (Cal. 2008) ...................................... 23
Miss. Univ. for Women v. Hogan,
458 U.S. 718 (1982) .................................. 12, 21, 22
-viiiTABLE OF AUTHORITIES
(continued)
Page(s)
Montgomery v. Indep. Sch. Dist. No. 709,
109 F. Supp. 2d 1081 (D. Minn. 2000) ................. 17
Muller v. Oregon,
208 U.S. 412 (1908), overruling
recognized in Nev. Dep’t of Human
Res. v. Hibbs, 538 U.S. 721 (2003) ....................... 10
Nichols v. Azteca Rest. Enters.,
256 F.3d 864 (9th Cir. 2001) ................................ 17
Obergefell v. Wymyslo,
962 F. Supp. 2d 968 (S.D. Ohio 2013),
rev’d sub nom. DeBoer v. Snyder,
772 F.3d 388 (6th Cir. 2014),
cert. granted, 135 S. Ct. 1040 (2015)...................... 7
Orr v. Orr,
440 U.S. 268 (1979) ........................................ 12, 29
Perry v. Schwarzenegger,
704 F. Supp. 2d 921 (N.D. Cal. 2010),
aff’d sub nom. Perry v. Brown,
671 F.3d 1052 (9th Cir. 2012),
vacated and remanded sub nom.
Hollingsworth v. Perry,
133 S. Ct. 2652 (2013) .................................... 29, 33
Planned Parenthood of Se. Pa. v. Casey,
505 U.S. 833 (1992) ........................................ 25, 32
Price Waterhouse v. Hopkins,
490 U.S. 228 (1989) ........................................ 16, 21
Prowel v. Wise Bus. Forms, Inc.,
579 F.3d 285 (3d Cir. 2009) .................................. 16
-ixTABLE OF AUTHORITIES
(continued)
Page(s)
Reed v. Reed,
404 U.S. 71 (1971) ...................................... 9, 27, 28
Rene v. MGM Grand Hotel, Inc.,
305 F.3d 1061 (9th Cir. 2002) .............................. 17
Riccio v. New Haven Bd. of Educ.,
467 F. Supp. 2d 219 (D. Conn. 2006) ................... 17
Robicheaux v. Caldwell,
2 F. Supp. 3d 910 (E.D. La. 2014) ........................ 24
Rosenbrahn v. Daugaard,
No. 4:14-CV-04081-KES, 2014 WL
6386903 (D.S.D. Nov. 14, 2014) ............................. 5
San Antonio Indep. Sch. Dist. v.
Rodriguez,
411 U.S. 1 (1973) .................................................. 22
Searcy v. Strange, No. 14-0208-CG-N,
2015 WL 328728 (S.D. Ala. Jan. 23,
2015)................................................................ 23, 24
Smith v. Liberty Mut. Ins. Co.,
569 F.2d 325 (5th Cir. 1978) ................................ 16
Stanley v. Illinois,
405 U.S. 645 (1972) .............................................. 33
Stanton v. Stanton,
421 U.S. 7 (1975) .................................................. 12
-xTABLE OF AUTHORITIES
(continued)
Page(s)
Tanco v. Haslam,
7 F. Supp. 3d 759 (M.D. Tenn. 2014),
rev’d sub nom. DeBoer v. Snyder,
772 F.3d 388 (6th Cir. 2014),
cert. granted, 135 S. Ct. 1040 (2015).................. 1, 6
Terveer v. Billington,
34 F. Supp. 3d 100 (D.D.C. 2014) ........................ 17
Turner v. Safley,
482 U.S. 78 (1987) ................................................ 32
United States v. Carolene Prods. Co.,
304 U.S. 144 (1938) .............................................. 22
United States v. Virginia,
518 U.S. 515 (1996) .......................................passim
United States v. Windsor,
133 S. Ct. 2675 (2013) ...................................passim
Varnum v. Brien,
763 N.W.2d 862 (Iowa 2009) ................................ 23
Veretto v. Donahoe,
Appeal No. 0120110873, 2011 WL
2663401 (E.E.O.C. Jul. 1, 2011) ........................... 21
Waters v. Ricketts,
No. 8:14-cv-356, 2015 WL 852603
(D. Neb. Mar. 2, 2015) ............................................ 5
Weber v. Aetna Cas. & Sur. Co.,
406 U.S. 164 (1972) .............................................. 29
Weinberger v. Wiesenfeld,
420 U.S. 636 (1975) .................................. 11, 28, 33
-xiTABLE OF AUTHORITIES
(continued)
Page(s)
Wengler v. Druggists Mut. Ins. Co.,
446 U.S. 142 (1980) .............................................. 29
Whitewood v. Wolf,
992 F. Supp. 2d 410 (M.D. Pa. 2014) ................... 24
Windsor v. United States,
699 F.3d 169 (2d Cir. 2012), aff’d, 133
S. Ct. 2675 (2013) ........................................... 22, 23
Wolf v. Walker,
986 F. Supp. 2d 982 (W.D. Wis.),
aff’d sub nom. Baskin v. Bogan, 766
F.3d 648 (7th Cir.), cert. denied,
135 S. Ct. 316 (2014) ............................................ 24
Constitutional Provisions and Statutes
U.S. Const. amend. XIV......................................passim
Title IX, 20 U.S.C. §§ 1681-1688 ............................... 19
Fair Housing Act, 42 U.S.C. §§ 36013619.2 .................................................................... 20
Tenn. Code Ann. § 36-3-113(a) .................................. 30
Other Authorities
Housing Trust Fund, 80 Fed. Reg. 5246
(Jan. 30, 2015) ...................................................... 19
Equal Access to Housing in HUD
Programs Regardless of Sexual
Orientation or Gender Identity, 77
Fed. Reg. 5662-01 (Feb. 3, 2012) .......................... 20
-xiiTABLE OF AUTHORITIES
(continued)
Page(s)
Susan Frelich Appleton, Missing in
Action? Searching for Gender Talk in
the Same-Sex Marriage Debate, 16
Stan. L. & Pol’y Rev. 97 (2005) ............................ 29
1 William Blackstone, Commentaries on
the Laws of England (3d ed. 1768) ...................... 27
Nancy F. Cott, Public Vows: A History of
Marriage and the Nation (2000) .......................... 27
Jill Elaine Hasday, Contest and Consent:
A Legal History of Marital Rape, 88
Calif. L. Rev. 373 (2000) ....................................... 28
Nan D. Hunter, Marriage, Law, and
Gender: A Feminist Inquiry, 1 Law &
Sexuality 9 (1991) ................................................. 27
Andrew Koppelman, Why
Discrimination Against Lesbians and
Gay Men Is Sex Discrimination, 69
N.Y.U. L. Rev. 197 (1994) .................................... 15
Deborah A. Widiss, Changing the
Marriage Equation, 89 Wash. U. L.
Rev. 721 (2012) ..................................................... 27
Letter from Russlynn Ali, Assistant
Sec’y for Civil Rights, U.S. Dep’t of
Educ., Office for Civil Rights, to
Colleagues (Oct. 26, 2010), available
at
http://www2.ed.gov/about/offices/list/
ocr/ letters/colleague-201010.pd..................... 19, 20
-xiiiTABLE OF AUTHORITIES
(continued)
Page(s)
Memorandum from Attorney Gen. Eric
Holder from to United States
Attorneys, Head of Department
Components (Dec. 15, 2014) ........................... 18, 19
United States Dep’t of Justice, Civil
Rights Div., Protecting the Rights of
Lesbian, Gay, Bisexual, Transgender,
and Intersex (LGBTI) Individuals
(Feb. 11, 2013), available at
http://www.justice.gov/crt/publication
s/lgbtibrochure.pdf................................................ 19
-1I.
INTEREST OF AMICI CURIAE1
Amici Curiae are the National Women’s Law
Center, California Women Lawyers, Connecticut
Women’s Education and Legal Fund, Center for
Reproductive Rights, Equal Rights Advocates,
Michigan
Association
for
Justice,
National
Association of Women Lawyers, National Partnership
for Women and Families, Women’s Bar Association of
the District of Columbia, Women’s Bar Association of
Illinois, Women’s Law Center of Maryland, Women’s
Lawyer Association of Michigan, and professors of
law associated with the Williams Institute, an
academic research center at UCLA School of Law
dedicated to the study of sexual orientation and
gender identity law and public policy. Amici have
substantial expertise related to equal protection,
discrimination based on sex, sexual orientation, and
gender stereotypes. Their expertise bears directly on
the issues before the Court.
Descriptions of
individual Amici are set out in the Appendix.
1 Prior to his representation of the Tanco Petitioners in the
pending action, attorney David Codell co-authored portions of
related briefs on the same issue submitted in this Court in
United States v. Windsor, 133 S. Ct. 2675 (2013), and
Hollingsworth v. Perry, 133 S. Ct. 2652 (2013), and in the Ninth
Circuit. He has not authored, revised, or edited any portion of
this brief since commencing the Tanco representation, nor has
any other party or party’s counsel authored this brief in whole or
in part. No party or party’s counsel contributed money intended
to fund preparation or submission of this brief, nor did a person
other than Amici or their counsel contribute money intended to
fund preparation or submission of the brief. All parties have
consented to the filing of this brief.
-2II.
SUMMARY OF ARGUMENT
Under the federal Constitution’s equal protection
guarantees, laws that classify on the basis of sex are
subject to heightened judicial scrutiny and cannot
stand absent an “exceedingly persuasive justification”
and a showing that such laws substantially further
important governmental interests. United States v.
Virginia, 518 U.S. 515, 533-34 (1996) [hereinafter
“VMI”]. In particular, the government may not
enforce laws that make sex classifications based on
gender stereotypes or gender-role expectations,
including those regarding roles that women and men
perform within the family, whether as caregivers,
breadwinners, heads of households, or parents.
Courts have recognized that sex classifications
warrant heightened scrutiny because the legal
imposition of archaic and overbroad gender
stereotypes arbitrarily harms women and men by
limiting individuals’ abilities to make decisions
fundamental to their lives and their identities.
Laws that discriminate based on sexual orientation,
like laws that discriminate based on sex, frequently
have a basis in overbroad gender stereotypes about
the preferences and capacities of men and women.2
Lesbian, gay, and bisexual persons long have been
harmed by legal enforcement of the expectation that
2 Amici note that, while this issue is not presented in this case,
laws that discriminate based on gender identity, including
transgender status, are also premised on overbroad gender
stereotypes and should be subject to heightened scrutiny. See
generally Glenn v. Brumby, 663 F.3d 1312, 1317 (11th Cir. 2011)
(holding discrimination against a transgender individual based
on gender nonconformity constitutes sex discrimination and
collecting cases in accord).
-3an individual’s most intimate relationship will be and
should be with a person of a different sex. Such
presumptions underlie many laws that discriminate
based on sexual orientation, including those at issue
here, and cause lesbian, gay, and bisexual persons to
experience both practical and dignitary harms of
constitutional magnitude. These laws communicate
to them and to the world that there is something
wrong with a core part of their identity, that they do
not measure up to what a man or a woman
supposedly should be, and that their most important
relationships are “less worthy,” United States v.
Windsor, 133 S. Ct. 2675, 2696 (2013) [hereinafter
“Windsor”], than the relationships and marriages of
different-sex couples.
The laws challenged here make sex classifications
in prescribing who may marry and whose marriages
shall be recognized, and thus should be reviewed
under heightened scrutiny, like any other law that
classifies on the basis of sex. But if these laws are
instead considered to classify on the basis of sexual
orientation, the result is the same. Just as the
Constitution requires heightened scrutiny of laws
that enforce the roles that men and women perform
within marriage on the basis of gender stereotypes,
the Constitution demands close scrutiny of laws
based on gender stereotypes that restrict an
individual’s liberty to decide whom he or she marries
and with whom he or she forms a family.
Accordingly, this Court should hold that laws that
discriminate based on sexual orientation warrant
heightened judicial scrutiny and that the laws
challenged here cannot withstand such scrutiny.
-4III.
ARGUMENT
Over the last four decades, application of
heightened scrutiny to laws that discriminate based
on sex has served as an important bulwark in
protecting individuals’ liberty to participate in family
life, education, and work, free from legally imposed
gender roles. Lesbian, gay, and bisexual persons,
however, are still subject to laws that burden their
liberty to enter into relationships, including
marriage, with the person to whom they may feel
closest—a person of the same sex. These laws deny
lesbian, gay, and bisexual persons full citizenship in
profound ways.
Rather than serving any important governmental
interest, marriage laws that discriminate against
same-sex couples reflect the gender-role expectation
that women will form intimate relationships with
men, and that men will form such relationships with
women, as well as the stereotype that same-sex
spouses are inferior parents because they cannot
fulfill particular gender roles. “As the Constitution
endures, persons in every generation can invoke its
principles in their own search for greater freedom.”
Lawrence v. Texas, 539 U.S. 558, 579 (2003). The
decisions whether and with whom to enter into
intimate relationships, including marriage, and
whether and with whom to raise children, are central
to individual liberty under the Constitution. The
government has no authority to restrict these choices
based on gender-based stereotypes or expectations,
just as it has no authority to dictate the roles that
men and women fill within marriage on such bases.
This Court repeatedly has held that the government
may not justify sex discrimination by an asserted
-5interest in perpetuating traditional gender roles in
people’s family and work lives.
Nor is sexual
orientation discrimination justified by a rigid and
exclusionary gender-role expectation that an
individual will only partner with someone of a
different sex.
Two of the laws at issue here define who may enter
into marriage on the basis of sex: a man may only
marry a woman and a woman, a man. The remainder
make sex classifications in providing that only
marriages between a man and a woman shall be
recognized under state law. As a result, the Court
must review these laws with heightened scrutiny,
because they constitute classifications based on sex.
See Latta v. Otter, 771 F.3d 456, 479-85 (9th Cir.
2014) (concurring opinion) (prohibition of same-sex
marriage constitutes sex classification subject to
heightened scrutiny); Waters v. Ricketts, No. 8:14-cv356, 2015 WL 852603, at *14-15 (D. Neb. Mar. 2,
2015) (plaintiffs are likely to prevail on the merits of
challenge to Nebraska’s marriage ban because the
law constitutes impermissible gender discrimination);
Jernigan v. Crane, No. 4:13-cv-00410 KGB, 2014 WL
6685391, at *23-24 (E.D. Ark. Nov. 25, 2014)
(prohibition of same-sex marriage constitutes sex
classification subject to heightened scrutiny);
Rosenbrahn v. Daugaard, No. 4:14-CV-04081-KES,
2014 WL 6386903, at *10-11 (D.S.D. Nov. 14, 2014)
(same claim survived motion to dismiss); Lawson v.
Kelly, No. 14-0622-CV-W-ODS, 2014 WL 5810215, at
*8 (W.D. Mo. Nov. 7, 2014) (prohibition of same-sex
marriage constitutes sex classification subject to
heightened scrutiny); Kitchen v. Herbert, 961 F. Supp.
2d 1181, 1206 (D. Utah 2013) (same), aff’d, 755 F.3d
1193 (10th Cir.), cert. denied, 135 S. Ct. 265 (2014);
-6cf. Loving v. Virginia, 388 U.S. 1, 9 (1967) (“In the
case at bar . . . we deal with statutes containing racial
classifications, and the fact of equal application does
not immunize the statute from the very heavy burden
of justification which the Fourteenth Amendment has
traditionally required of state statutes drawn
according to race.”).3
Even if such laws are not considered sex
discrimination per se, however, this Court should
subject laws that deny rights or opportunities based
on sexual orientation to heightened scrutiny for
several reasons, including the close relationship
between sex discrimination and sexual orientation
discrimination, which is the focus of this brief.
In the cases at bar, the district courts uniformly
concluded that the challenged marriage laws
discriminated in violation of the Equal Protection
Clause, and three of those courts expressly held that
heightened scrutiny properly applies to sexual
On review of these
orientation classifications.4
3 The Amicus Brief of Constitutional Law Scholars Andrew
Koppelman et al. on Sex Discrimination sets out this analysis in
greater detail.
4 See Henry v. Himes, 14 F. Supp. 3d 1036, 1054 (S.D. Ohio
2014) (applying heightened scrutiny to Ohio’s marriage bans
because they classified on the basis of sexual orientation); Tanco
v. Haslam, 7 F. Supp. 3d 759, 769 (M.D. Tenn. 2014) (applying
rational basis review and concluding equal protection claim
likely to succeed); Bourke v. Beshear, 996 F. Supp. 2d 542, 54849 (W.D. Ky. 2014) (noting that gay and lesbian individuals
share many characteristics of other groups afforded heightened
scrutiny, but concluding Kentucky’s ban could not survive even
rational basis review); Love v. Beshear, 989 F. Supp. 2d 536, 547
(W.D. Ky. 2014) (comparing sexual-orientation discrimination to
gender discrimination and concluding heightened scrutiny
applied but that marriage bans failed under rational basis
-7decisions, however, the Sixth Circuit became the first
federal appellate court to uphold bans on marriage
and marriage recognition for same-sex couples since
this Court’s decision in Windsor. DeBoer v. Snyder,
772 F.3d 388, 421 (6th Cir. 2014), cert. granted, 135
S. Ct. 1040 (Jan. 16, 2015). In concluding that samesex couples should look not to the courts but to “state
democratic processes” to protect their rights, the
Sixth Circuit opinion declined to articulate the
relevant doctrinal framework to analyze the
constitutional challenges and thus “wholly fail[ed] to
grapple with the relevant constitutional question.”
Id. at 421 (Daughtrey, J., dissenting).
Were this Court to apply the standard of review
applicable to sex discrimination, the laws challenged
here would be invalid unless the government could
show an “exceedingly persuasive” justification for
them, including a showing “at least that the
[challenged] classification[s] serve[] important
governmental objectives and that the discriminatory
means employed are substantially related to the
achievement of those objectives” without “rely[ing] on
overbroad generalizations about the different talents,
capacities, or preferences of males and females.”
VMI, 518 U.S. at 533 (first alteration in original)
review); DeBoer v. Snyder, 973 F. Supp. 2d 757, 769 (E.D. Mich.
2014) (concluding applicable standard of scrutiny need not be
determined because Michigan’s laws did not survive even
rational basis review); Obergefell v. Wymyslo, 962 F. Supp. 2d
968, 991 (S.D. Ohio 2013) (holding heightened scrutiny applies
to sexual-orientation classifications but marriage bans fail even
rational basis review).
-8(citations and internal quotation marks omitted).
These laws cannot withstand such scrutiny.5
A.
This
Court
Adopted
Heightened
Scrutiny for Laws That Discriminate
Based on Sex Because Such Laws Are
Typically
Based
on
Gender
Stereotypes.
Again and again, this Court has recognized that
laws that discriminate on the basis of sex typically
rely on gender-based expectations about the roles or
conduct that is supposedly natural, moral, or
traditional for women and men, and that legal
enforcement of these stereotypes is incompatible with
equal opportunity. A repeated refrain runs through
modern case law addressing measures that deny
rights or opportunities based on sex: such laws
warrant “skeptical scrutiny,” VMI, 518 U.S. at 531,
because “of the real danger that government policies
that
professedly
are
based
on
reasonable
considerations in fact may be reflective of archaic and
overbroad generalizations about gender, or based on
outdated misconceptions concerning the role of
females in the home rather than in the marketplace
and world of ideas.” J.E.B. v. Alabama ex rel. T.B.,
511 U.S. 127, 135 (1994) (internal quotation marks
omitted).
5 Amici also note that these laws lack any rational basis.
Moreover, were this Court to employ strict scrutiny for laws that
discriminate based on sexual orientation—the standard of
review for laws that classify based on race and national origin,
e.g., Johnson v. California, 543 U.S. 499, 505 (2005)—the
challenged measures would fail, for they are not narrowly
tailored to further a compelling state interest.
-9For example, the first case in which Justices of this
Court expressly subjected a sex-based classification to
heightened scrutiny, Frontiero v. Richardson, 411
U.S. 677 (1973) (plurality), recognizes that “our
Nation has had a long and unfortunate history of sex
discrimination” in which the Court itself played a
role.6 Id. at 684. Justice Brennan’s plurality opinion
quoted now-infamous language from the 1872 case
Bradwell v. Illinois, which proclaimed that “‘[m]an is,
or should be, woman’s protector and defender’”; that
women’s “natural and proper timidity and delicacy”
render them “unfit[] for many of the occupations of
civil life”; and that “[t]he paramount destiny and
mission of women are to fulfill the noble and benign
offices of wife and mother.” Frontiero at 684-85
(quoting Bradwell, 83 U.S. (16 Wall.) 130, 141 (1872)
(Bradley, J., concurring) (rejecting constitutional
challenge to Illinois’s refusal to admit a woman to the
bar)). The Frontiero plurality observed that “[a]s a
result of notions such as these, our statute books
gradually became laden with gross, stereotyped
distinctions between the sexes.” 411 U.S. at 685.
At issue in Frontiero was a law that provided
military benefits to wives of Air Force officers as a
6 In Frontiero, four Justices applied strict scrutiny to the
challenged sex classification, one Justice concurred and
concluded
that
the
provision
constituted
“invidious
discrimination,” and three Justices concurred but found it
unnecessary to determine whether strict scrutiny applied.
Frontiero, 411 U.S. at 678, 691. Two years before Frontiero, in
Reed v. Reed, 404 U.S. 71 (1971), this Court, “for the first time
in our Nation’s history . . . ruled in favor of a woman who
complained that her State had denied her the equal protection of
its laws,” VMI, 518 U.S. at 532 (citing Reed, 404 U.S. at 73), but
did not expressly apply heightened scrutiny. See Reed, 404 U.S.
at 74.
-10matter of course, but extended such benefits to
husbands of Air Force officers only upon proof of their
financial dependence on their wives.
Applying
heightened scrutiny to smoke out gender stereotypes,
the Court recognized that the scheme was premised
on the gender-based expectation that women were
financially dependent on their husbands and
concluded it violated the equal protection guarantee.
In so doing, it directly rejected assumptions that this
Court had relied on not only in 1872 but for many
decades thereafter—assumptions that fundamental
differences in the roles appropriate for women and
men, rooted in women’s traditional family
responsibilities, justified laws limiting opportunities
for women and reinforcing gender stereotypes. E.g.,
Hoyt v. Florida, 368 U.S. 57, 62 (1961) (upholding
state law that made jury duty registration optional
for women because “woman [was] still regarded as
the center of home and family life”), overruling
recognized in J.E.B., 511 U.S. at 134 n.5; Goesaert v.
Cleary, 335 U.S. 464, 466 (1948) (upholding statute
prohibiting women from bartending unless they were
a bar owner’s wife or daughter because states were
not precluded “from drawing a sharp line between the
sexes” and “oversight . . . by a barmaid’s husband or
father minimizes hazards that may confront a
barmaid without such protecting oversight”),
disapproved of by Craig v. Boren, 429 U.S. 190, 210
n.23 (1976); cf. Muller v. Oregon, 208 U.S. 412, 421-22
(1908) (upholding legislation limiting women’s work
hours because “healthy mothers are essential to
vigorous offspring, [and so] the physical well-being of
woman becomes an object of public interest”),
overruling recognized in Nev. Dep’t of Human Res. v.
Hibbs, 538 U.S. 721, 729-30 (2003).
-11In Weinberger v. Wiesenfeld, 420 U.S. 636 (1975)
[hereinafter “Wiesenfeld”], this Court further
illuminated how laws based on gender stereotypes
arbitrarily harm those who do not conform to those
stereotypes.
Wiesenfeld held unconstitutional a
Social Security Act provision that required payment
of benefits to a deceased worker’s widow and minor
children, but not to a deceased worker’s widower. Id.
at 637-39. First, the Court explained that the
challenged provision’s reliance on the “gender-based
generalization” that “men are more likely than
women to be the primary supporters of their spouses
and children” devalued the employment of women,
“depriv[ing] women of protection for their families
which men receive as a result of their employment.”
Id. at 645. Second, the challenged provision “was
intended to permit women to elect not to work and to
devote themselves to the care of children.” Id. at 648.
The provision thereby failed to contemplate fathers
such as Stephen Wiesenfeld, a widower who wished
to care for his child at home. The Court emphasized
that gender does not prescribe or limit parental roles,
stating, “It is no less important for a child to be cared
for by its sole surviving parent when that parent is
male rather than female.” Id. at 652; see also
Califano v. Goldfarb, 430 U.S. 199, 216-17 (1977)
[hereinafter “Goldfarb”] (holding unconstitutional
differential treatment of widows and widowers based
on “archaic and overbroad generalizations”) (internal
quotation marks omitted).
As these and other cases illustrate, laws that
discriminate on the basis of sex are typically
premised
on
gender
stereotypes,
including
stereotypes of the family as properly or necessarily
comprising a woman as homemaker and caretaker
-12and a man as breadwinner and protector.7 In their
failure to recognize that many men and women either
do not wish to or are unable to conform to these roles,
such laws arbitrarily limit individuals’ ability to
make fundamental decisions about their lives. By
enforcing
what
Justice
Bradley’s
Bradwell
concurrence termed the “law of the Creator” that
“[t]he paramount destiny and mission of women are
to fulfill the noble and benign offices of wife and
mother,” Frontiero, 411 U.S. at 685, such laws not
only reflect an often inaccurate conclusion that this is
how men and women do behave but also seek to
impose a moral judgment that this is how men and
women should behave.
When the law enforces
“assumptions about the proper roles of men and
women,” it closes opportunity, depriving individuals
of their essential liberty to depart from gender-based
expectations. Miss. Univ. for Women v. Hogan, 458
U.S. 718, 726 (1982) [hereinafter “Hogan”].
Accordingly, “the test for determining the validity of
a gender-based classification . . . must be applied free
of fixed notions concerning the roles and abilities of
males and females.” Id. at 724-25.
7 See also Califano v. Westcott, 443 U.S. 76, 89 (1979) (holding
unconstitutional federal statute providing for support only in
the event of father’s unemployment based on stereotype that
father is principal provider “while the mother is the center of
home and family life”) (internal quotation marks omitted); Orr v.
Orr, 440 U.S. 268, 283 (1979) (invalidating measure imposing
alimony obligations solely on husbands because it “carries with
it the baggage of sexual stereotypes”); Stanton v. Stanton, 421
U.S. 7, 14-15 (1975) (finding unconstitutional state support
statute assigning different age of majority to girls than to boys
and stating, “[n]o longer is the female destined solely for the
home and the rearing of the family, and only the male for the
marketplace and the world of ideas”).
-13These decisions make clear that “archaic and
overbroad generalizations” cannot justify “statutes
employing gender as an inaccurate proxy for other,
more germane bases of classification.” Craig v.
Boren, 429 U.S. 190, 198 (1976). Such “loose-fitting
characterizations” are “incapable of supporting . . .
statutory schemes . . . premised upon their accuracy.”
Id. at 199. By requiring an “exceedingly persuasive”
showing of a close relationship between a sex
classification and a statutory scheme’s objective, and
by demanding that the objective be important (rather
than merely legitimate), the Equal Protection Clause
rejects the “artificial constraints on an individual’s
opportunity” imposed by laws resting on gender
stereotypes, VMI, 518 U.S. at 533, and ensures that
“generalizations about ‘the way women are,’
estimates of what is appropriate for most women, no
longer justify denying opportunity to women whose
talent and capacity place them outside the average
description,” id. at 550. In this way, heightened
scrutiny recognizes that “[a]t the heart of the
Constitution’s guarantee of equal protection lies the
simple command that the Government must treat
citizens as individuals, not as simply components of a
racial [or] sexual . . . class.” J.E.B., 511 U.S. at 152-53
(Kennedy, J., concurring) (alteration in original)
(internal quotation marks omitted).
B.
Laws That Discriminate Based on
Sexual Orientation Should Be Subject
to Heightened Scrutiny Because of
Their Frequent Basis in Gender
Stereotypes.
Just as laws that classify based on sex often
improperly rest on and seek to impose stereotyped
-14gender-role expectations that do not hold true for all
men and women, “same sex marriage prohibitions
seek to preserve an outmoded, sex-role-based vision
of the marriage institution, and in that sense . . .
raise the very concerns that gave rise to the
contemporary constitutional approach to sex
discrimination.” Latta, 771 F.3d at 487 (concurring
opinion).
Central among the gender-based
expectations on which these prohibitions rest are the
presumptions that a woman will and should form an
intimate relationship and family with a man, not
with a woman, and that a man will and should form
an intimate relationship and family with a woman,
not with a man.
Courts have rejected gender
stereotypes as a proper basis for lawmaking with
regard to sex. Courts similarly should view these
stereotypes and expectations with skepticism when
reviewing the constitutionality of laws that
discriminate based on sexual orientation.
1.
Sexual Orientation Discrimination
Is Rooted in Gender Stereotypes.
Laws that classify based on sexual orientation and
laws that discriminate based on sex typically share a
foundation in gender stereotypes or gender-based
expectations. Many laws discriminating based on
sexual orientation are founded on assumptions that
men and women form (or should form) romantic,
familial, or sexual relationships with each other,
rather than with persons of the same sex. These
assumptions have been at the root of laws prohibiting
same-sex intimate conduct, as well as laws regarding
family structure that discriminate based on sexual
orientation, such as the marriage laws challenged
here. Perhaps less apparent, but equally true, is that
-15such gender-based expectations underlie other forms
of discrimination against lesbian, gay, and bisexual
people too.
The notion that stigma and discrimination against
lesbian, gay, and bisexual persons are premised on
gender-role assumptions is a matter of common
experience in our society. “There is nothing esoteric
or sociologically abstract in the claim that the
homosexuality taboo enforces traditional sex roles.
Everyone knows that it is so.” Andrew Koppelman,
Why Discrimination Against Lesbians and Gay Men
Is Sex Discrimination, 69 N.Y.U. L. Rev. 197, 235
(1994). “Most Americans learn no later than high
school that one of the nastier sanctions that one will
suffer if one deviates from the behavior traditionally
deemed appropriate for one’s sex is the imputation of
homosexuality.
The
two
stigmas,
sexinappropriateness and homosexuality, are virtually
interchangeable, and each is readily used as a
metaphor for the other.” Id.; see also Doe ex rel. Doe
v. City of Belleville, Ill., 119 F.3d 563, 593 n.27 (7th
Cir. 1997) (“There is, of course, a considerable overlap
in the origins of sex discrimination and homophobia,
and so it is not surprising that sexist and homophobic
epithets often go hand in hand.”), vacated and
remanded on other grounds, 523 U.S. 1001 (1998);
Henderson v. Labor Finders of Va., Inc., No. 3:12-CV600, 2013 WL 1352158, at *5 (E.D. Va. Apr. 2, 2013)
(“[A]s a result of the well-documented relationship
between perceptions of sexual orientation and gender
norms, gender-loaded language can easily be used to
refer to perceived sexual orientation and vice versa.”);
Centola v. Potter, 183 F. Supp. 2d 403, 410 (D. Mass.
2002) (“[S]tereotypes about homosexuality are
directly related to our stereotypes about the proper
-16roles of men and women.”). Individuals who depart
from gender-based expectations are often targeted
with antigay animus and slurs, regardless of their
actual sexual orientation. Lesbian, gay, and bisexual
people regularly experience social disapproval and
discrimination that is targeted at their nonconformity
with gender-based expectations—because they are
not acting as “real men” or “real women” supposedly
do.
Although the linkage between antigay stigma and
gender-based expectations is apparent in ordinary
life, courts have only recently begun to recognize its
legal implications.
For example, in considering
whether lesbian, gay, and bisexual people could find
recourse
in
federal
statutes
prohibiting
discrimination based on sex, courts initially focused
on the absence of express mention of sexual
orientation in such laws. See, e.g., Smith v. Liberty
Mut. Ins. Co., 569 F.2d 325, 326-27 (5th Cir. 1978)
(declining to apply Title VII to “sexual preference”
discrimination claim because “the prohibition on
sexual discrimination could not be extend(ed) . . . to
situations of questionable application without some
stronger Congressional mandate”) (internal quotation
marks omitted).
More recently, however, an
increasing number of courts understand that the
discrimination lesbian, gay, and bisexual people
experience in the workplace or in school can take the
form of hostility toward nonconformity with gender
stereotypes—which, as this Court recognized twentysix years ago in Price Waterhouse v. Hopkins, 490
U.S. 228 (1989), constitutes sex discrimination. See,
e.g., Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285,
290-92 (3d Cir. 2009) (holding harassment of gay man
targeting his gender-nonconforming behavior and
-17appearance could constitute sex harassment); Rene v.
MGM Grand Hotel, Inc., 305 F.3d 1061, 1069 (9th
Cir. 2002) (en banc) (concurring opinion) (concluding
gay man stated a claim for sex discrimination based
on evidence that he was mocked by male co-workers
because of his nonconformity with “gender-based
stereotypes”); Nichols v. Azteca Rest. Enters., 256
F.3d 864, 874-75 (9th Cir. 2001) (holding harassment
of male employee for failing to act “as a man should
act,” including being derided for not having sex with
female colleague, constituted actionable sex
discrimination based on nonconformity with gender
stereotypes); Terveer v. Billington, 34 F. Supp. 3d
100, 114-16 (D.D.C. 2014) (holding gay man stated
sex discrimination claim where he alleged
discrimination due to his nonconformity with gender
stereotypes); Koren v. Ohio Bell Tel. Co., 894 F. Supp.
2d 1032, 1037 (N.D. Ohio 2012) (holding an allegation
that manager harassed employee because he took his
male spouse’s surname stated claim based on sex
stereotyping); Riccio v. New Haven Bd. of Educ., 467
F. Supp. 2d 219, 226 (D. Conn. 2006) (explaining that
harassment claims premised on antigay epithets and
plaintiff’s alleged failure to conform to gender
stereotypes could proceed to trial under Title IX’s sex
discrimination prohibition); Heller v. Columbia
Edgewater Country Club, 195 F. Supp. 2d 1212, 122325 (D. Or. 2002) (denying employer’s motion for
summary judgment on Title VII sex discrimination
claim in case where supervisor repeatedly used
antigay slurs); Montgomery v. Indep. Sch. Dist. No.
709, 109 F. Supp. 2d 1081, 1090 (D. Minn. 2000)
(holding plaintiff stated Title IX sex discrimination
claim because he alleged fellow students targeted him
“not only because they believed him to be gay, but
-18also because he did not meet their stereotyped
expectations of masculinity”).
As one district court has noted:
Sexual orientation harassment is often, if not
always, motivated by a desire to enforce
heterosexually defined gender norms. In fact,
stereotypes about homosexuality are directly
related to our stereotypes about the proper
roles of men and women.
While one
paradigmatic form of stereotyping occurs
when co-workers single out an effeminate
man for scorn, in fact, the issue is far more
complex. The harasser may discriminate
against an openly gay co-worker or a coworker that he perceives to be gay, whether
effeminate or not, because he thinks, “real
men don’t date men.” The gender stereotype
at work here is that “real” men should date
women, and not other men.
Centola, 183 F. Supp. 2d at 410. This jurisprudence
recognizes that discrimination faced by lesbian, gay,
and bisexual people, as well as transgender people,
will often be based on gender stereotypes.
Federal agencies charged with enforcement of civil
rights laws also have recently emphasized that
discrimination experienced by lesbian, gay, bisexual,
and transgender people is often discrimination based
on nonconformity with gender-based expectations—
and in these circumstances such discrimination
constitutes sex discrimination.8 For example, the
8
Indeed, several federal agencies have concluded that
discrimination on the basis of gender identity is per se sex
discrimination. See, e.g., Memorandum from Attorney Gen. Eric
-19United States Department of Labor’s Office of
Federal Contract Compliance Programs has recently
proposed new sex discrimination regulations
addressing employment decisions made on the basis
of sex-based stereotypes, noting, “Sex-based
stereotyping
may
have
even
more
severe
consequences for transgender, lesbian, gay, and
bisexual applicants and employees, many of whom
report that they have experienced discrimination in
the workplace.” Housing Trust Fund, 80 Fed. Reg.
5246, 5252 (Jan. 30, 2015). The Civil Rights Division
of the United States Department of Justice has
issued guidance explaining that federal employment,
housing, education, and other statutes that prohibit
discrimination based on sex “protect[] all people
(including LGBTI people) from . . . discrimination
based on a person’s failure to conform to stereotypes
associated with [a] person’s real or perceived gender.”
U.S. Dep’t of Justice, Civil Rights Div., Protecting the
Rights of Lesbian, Gay, Bisexual, Transgender, and
Intersex (LGBTI) Individuals (Feb. 11, 2013),
available at http://www.justice.gov/crt/publications/
lgbtibrochure.pdf. The United States Department of
Education’s Office for Civil Rights has explained that
harassment of students “on the basis of their LGBT
status” is prohibited by Title IX, 20 U.S.C. §§ 16811688, when such harassment is motivated by “sexstereotyping.” Letter from Russlynn Ali, Assistant
Sec’y for Civil Rights, U.S. Dep’t of Educ., Office for
Civil Rights, to Colleagues, at 7-8 (Oct. 26, 2010),
Holder to United States Attorneys, Head of Department
Components (Dec. 15, 2014) (stating the Department now
considers discrimination against transgender individuals a form
of sex discrimination barred by Title VII); Macy v. Holder, No.
0120120821, 2012 WL 1435995 (E.E.O.C. Apr. 20, 2012) (same).
-20available at http://www2.ed.gov/about/offices/list/ocr/
letters/colleague-201010.pdf.
The United States
Department of Housing and Urban Development has
similarly construed the sex discrimination prohibition
in the Fair Housing Act, 42 U.S.C. §§ 3601-3619.2.
See Equal Access to Housing in HUD Programs
Regardless of Sexual Orientation or Gender Identity,
77 Fed. Reg. 5662, 5666 (Feb. 3, 2012) (“[T]he Fair
Housing Act’s prohibition of discrimination on the
basis of sex prohibits discrimination against LGBT
persons in certain circumstances, such as those
involving nonconformity with gender stereotypes.”).
In addition, the United States Equal Employment
Opportunity Commission has reasoned that
Title VII’s “broad prohibition of discrimination ‘on the
basis of . . . sex’ will offer coverage to gay individuals
in certain circumstances,” including where an
employee is discriminated against “based on the
perception that he does not conform to gender
stereotypes of masculinity.” Couch v. Chu, No.
0120131136, 2013 WL 4499198, at *7-8 (E.E.O.C.
Aug. 13, 2013) (quoting Baker v. Astrue, No.
0120110008, 2013 WL 1182258 (E.E.O.C. Jan. 11,
2013)); see also id. at *7 (“[S]ince Price Waterhouse,
every court of appeals has recognized that disparate
treatment for failing to conform to gender-based
expectations is sex discrimination and has also
concluded that this principle applies with equal force
in cases involving plaintiffs who are gay, bisexual,
heterosexual, or transgender.”); Culp v. Napolitano,
No. 0720130012, 2013 WL 2146756, at *3-4 (E.E.O.C.
May 7, 2013) (concluding allegation of sexual
orientation discrimination was a claim of sex
discrimination because supervisor was motivated by
gender stereotypes that women should have
-21relationships only with men); Castello v. Donahoe,
No. 0120111795, 2011 WL 6960810, at *2-3 (E.E.O.C.
Dec. 20, 2011) (concluding discrimination based on
stereotype that women should have sexual
relationships only with men can constitute sex
discrimination); Veretto v. Donahoe, Appeal No.
0120110873, 2011 WL 2663401, at *3 (E.E.O.C. Jul.
1, 2011) (holding discrimination based on the
stereotype that a man should not marry another man
can constitute sex discrimination).
Just as courts and agencies have recognized in the
context of statutory antidiscrimination protections
that Price Waterhouse’s anti-stereotyping principle
will often protect lesbian, gay, and bisexual people
from discrimination, so must courts consider the
implications of the anti-stereotyping principle
underlying constitutional protections against sex
discrimination for laws that discriminate based on
sexual orientation. Laws that discriminate based on
sexual orientation are, at their core, based on “‘fixed
notions’” about the roles, preferences, and capacities
of women and men of the sort that have been
repeatedly rejected in sex discrimination cases under
the Equal Protection Clause. VMI, 518 U.S. at 541
(quoting Hogan, 458 U.S. at 725).
Such
discrimination improperly seeks to impose genderbased expectations on how men and women structure
their lives.
2.
Government
Action
That
Discriminates Based on Sexual
Orientation Warrants Heightened
Scrutiny.
Lesbian, gay, and bisexual people long have had
important life opportunities foreclosed by state action
-22seeking to enforce gender-based expectations in
connection with the most intimate of human
relationships. As with measures seeking to enforce
outdated gender stereotypes on the basis of sex,
courts should require at least “an ‘exceedingly
persuasive justification,’” VMI, 518 U.S. at 531
(quoting Hogan, 458 U.S. at 724), for classifications
based on sexual orientation. Heightened scrutiny for
such laws follows straightforwardly from precedents
identifying relevant factors in determining whether a
particular classification warrants close judicial
scrutiny, rather than simple deference to
majoritarian lawmaking. See generally San Antonio
Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973)
(reciting “traditional indicia of suspectness”); United
States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4
(1938) (noting considerations that “may call for a . . .
more searching judicial inquiry”); Windsor v. United
States, 699 F.3d 169, 181 (2d Cir. 2012) [hereinafter
“Windsor v. United States”] (explaining why lesbian,
gay, and bisexual persons meet definition of a quasisuspect class), aff’d, 133 S. Ct. 2675 (2013). That is
so because measures discriminating on the basis of
sexual orientation typically bear little or no relation
to the actual abilities, capacities, or preferences of the
persons that they constrain or burden.
In Windsor, this Court observed that the question
of what level of scrutiny applies to sexual orientation
discrimination is “still being debated and considered
in the courts.” 133 S. Ct. at 2683. Nearly two years
later, courts across the country have spoken with a
strong voice. In that case, the Second Circuit had
concluded that the federal Constitution requires
heightened scrutiny of laws that discriminate based
on sexual orientation, a holding that stands given
-23this Court’s affirmance of its judgment. Windsor v.
United States, 699 F.3d at 181. Post-Windsor, four of
five federal appellate courts and all but two of the
over 40 federal district courts to consider laws that
ban same-sex couples from marrying or prohibit
recognition of same-sex couples’ out-of-state
marriages have found these laws violate the
Constitution.
Many have concluded these
prohibitions are subject to heightened scrutiny under
the Equal Protection Clause because they constitute
discrimination on the basis of sexual orientation and
that they fail, or are likely to fail, this test.9 See, e.g.,
Baskin v. Bogan, 766 F.3d 648, 656 (7th Cir. 2014)
(holding that Indiana’s and Wisconsin’s marriage
bans unconstitutionally deny equal protection under
heightened scrutiny and also are “irrational”
discrimination and fail rational basis review), cert.
denied, 135 S. Ct. 316 (2014); Latta, 771 F.3d at 468
9
Other courts have struck down these laws as an
unconstitutional denial of the fundamental right to marry, e.g.,
Bostic v. Schaefer, 760 F.3d 352, 367 (4th Cir.), cert. denied, 135
S. Ct. 308 (2014); Kitchen v. Herbert, 755 F.3d 1193 (10th Cir.),
cert denied, 135 S. Ct. 265 (2014).
Applying heightened
scrutiny, the highest courts of California, Connecticut, Iowa, and
New Mexico also invalidated marriage bans under their state
constitutions. See In re Marriage Cases, 183 P.3d 384, 401 (Cal.
2008); Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407, 476
(Conn. 2008); Varnum v. Brien, 763 N.W.2d 862, 896 (Iowa
2009); Griego v. Oliver, 316 P.3d 865, 884 (N.M. 2013). PostWindsor courts also have concluded that rational basis review
applies but that these laws fail to pass muster even under this
deferential standard; see e.g., Bishop v. United States ex rel.
Holder, 962 F. Supp. 2d 1252, 1295 (N.D. Okla.), aff’d on other
grounds sub nom. Bishop v. Smith, 760 F.3d 1070 (10th Cir.),
cert. denied 135 S. Ct. 271 (2014); Searcy v. Strange, No. 140208-CG-N, 2015 WL 328728, at *1, *4 (S.D. Ala. Jan. 23, 2015);
Campaign for S. Equal. v. Bryant, No. 3:14-CV-818-CWR-LRA,
2014 WL 6680570, at *28-34 (S.D. Miss. Nov. 25, 2014).
-24(applying heightened scrutiny to strike down Idaho’s
and Nevada’s marriage bans); Brenner v. Scott, 999 F.
Supp. 2d 1278, 1289 (N.D. Fla. 2014) (noting that
states’ asserted interests would fail intermediate
scrutiny, and that arguments they would fail rational
basis review as well were “persuasive”); Whitewood v.
Wolf, 992 F. Supp. 2d 410, 428, 431 (M.D. Pa. 2014)
(finding Pennsylvania’s marriage bans are subject to
and violate heightened scrutiny); Wolf v. Walker, 986
F. Supp. 2d 982, 1014 (W.D. Wis.) (holding that
because sexual orientation is “most similar to sex
among the different classifications that receive
heightened protection . . . [the court] will assume that
intermediate scrutiny applies”), aff’d sub nom. Baskin
v. Bogan, 766 F.3d 648 (7th Cir.), cert. denied, 135 S.
Ct. 316 (2014); De Leon v. Perry, 975 F. Supp. 2d 632,
652 (W.D. Tex. 2014) (finding plaintiffs’ argument for
heightened scrutiny compelling but unnecessary to
the equal protection claim “since Texas’ ban on samesex marriage fails even under the most deferential
rational basis level of review”); see also Searcy, 2015
WL 328728, at *3 (noting a strong argument can be
made that classification based on sexual orientation
is suspect); Campaign for S. Equal., 2014 WL
6680570, at *28 (observing that intermediate scrutiny
was most appropriate, though circuit precedent
required rational basis review). But see Conde-Vidal
v. Garcia-Padilla, No. 14-1253 PG, 2014 WL 5361987,
at *10 (D.P.R. Oct. 21, 2014) (upholding Puerto Rico’s
marriage ban); Robicheaux v. Caldwell, 2 F. Supp. 3d
910, 919-20 (E.D. La. 2014) (upholding Louisiana’s
marriage bans under rational basis review).
Heightened scrutiny is particularly appropriate in
this context because laws that impose gender-role
expectations in contravention of the actual
-25preferences of individuals offend the central liberty
interest on which this Court focused in Lawrence and
Windsor. In Lawrence, this Court reaffirmed that
“‘matters[] involving the most intimate and personal
choices a person may make in a lifetime, choices
central to personal dignity and autonomy, are central
to the liberty protected by the Fourteenth
Amendment,’” and that “‘[b]eliefs about these matters
could not define the attributes of personhood were
they formed under compulsion of the State.’” 539
U.S. at 574 (quoting Planned Parenthood of Se. Pa. v.
Casey, 505 U.S. 833, 851 (1992)). The Court in
Lawrence was emphatic that “[p]ersons in a
homosexual relationship may seek autonomy for
these purposes, just as heterosexual persons do,” id.,
and in Windsor, the Court expressly noted that state
marriage laws permitting same-sex couples to marry
reflect “evolving understanding of the meaning of
equality,” 133 S. Ct. at 2692-93. The Constitution’s
liberty and equality principles are mutually
reinforcing and are incompatible with a presumption
of constitutionality for the legally enforced
expectation that individuals should enter into
intimate relationships only with someone of a
different sex.
An essential component of the Constitution’s due
process and equal protection guarantees is that the
government cannot exclude individuals from
important social statuses, institutions, relationships,
or legal protections because of a characteristic that is
irrelevant to participation in such statuses,
institutions, relationships, or protections. See, e.g.,
Frontiero, 411 U.S. at 686-87. Courts therefore must
look with skepticism upon laws that restrict access to
marriage based on overbroad gender stereotypes and
-26prescribed gender roles unrelated to the actual
capacity of persons to engage in mutual care and
protection, to share economic risks, and to raise
children together—capacities that do not turn on
sexual orientation. Because legal enforcement of
these stereotypes and roles arbitrarily constrains
individuals’ most fundamental and personal choices
about their own lives, the Constitution requires
vigorous interrogation of any such government
action.
C.
Laws Excluding Same-Sex
From
Marriage
Cannot
Heightened Scrutiny.
Couples
Survive
Marriage laws were once a leading example of sexbased rules that enforced separate gender roles for
men and women and deprived persons of equal
opportunities based on notions of what was moral,
proper, or divinely ordered. As the harm arising from
laws requiring adherence to stereotyped gender roles
has been recognized, sex-based marriage rules have
been almost completely dismantled, with one glaring
exception: Many states continue to exclude same-sex
couples from marriage. See Latta, 771 F.3d at 489-90
(concurring opinion). The Equal Protection Clause
promises lesbian, gay, and bisexual persons, as it
promises all persons, “full citizenship stature—equal
opportunity to aspire, achieve, participate in and
contribute to society.”
VMI, 518 U.S. at 532.
Subjecting such laws, including marriage laws that
discriminate based on sexual orientation, to
heightened scrutiny is appropriate so that each
person may have equal opportunity to aspire to and
experience a relationship with the person whom he or
she most wishes to build a life.
-271.
Heightened Scrutiny Has Been Key
to
Dismantling
Sex-Specific
Marriage Laws That Once Enforced
Gender Stereotypes.
Historically, “the husband and wife [were] one
person in law: . . . the very being or legal existence
of the woman [was] suspended . . . or at least [was]
incorporated and consolidated into that of the
husband . . . .” 1 William Blackstone, Commentaries
on the Laws of England 442 (3d ed. 1768); see Nancy
F. Cott, Public Vows: A History of Marriage and the
Nation 11 (2000). For example, wives could not
contract or dispose of their assets without their
husbands’ cooperation.
Even after the Married
Women’s Property Acts and similar laws gave
married women increased control over their property
in the nineteenth century, many state and federal
statutes continued to rely on the notion that marriage
imposed separate (and unequal) roles on men and
women. See generally Deborah A. Widiss, Changing
the Marriage Equation, 89 Wash. U. L. Rev. 721, 73539 (2012). Indeed, courts routinely invalidated efforts
by spouses to “alter the ‘essential’ elements of
marriage” through contractual arrangements seeking
to modify its “gender-determined aspects.” Nan D.
Hunter, Marriage, Law, and Gender: A Feminist
Inquiry, 1 Law & Sexuality 9, 15 & n.24 (1991).
An extensive legal framework continued to set out
gender-specific rules relating to marriage well into
the second half of the twentieth century. In 1971, for
example, an appendix to the appellant’s brief in Reed
v. Reed listed numerous areas of state law that
disadvantaged married women, including mandatory
disqualification
of
married
women
from
-28administering estates of the intestate, qualifications
on married women’s right to engage in independent
business, limitations on the capacity of married
women to become sureties, differential marriageable
ages, and domiciles of married women following that
of their husbands. Brief for Appellant, app. at 69-88,
Reed v. Reed, 404 U.S. 71 (June 25, 1971) (No. 70-4)
(collecting state laws in each area). Many states’
criminal laws retained the common law presumption
that wives could not be raped by their husbands. See
Jill Elaine Hasday, Contest and Consent: A Legal
History of Marital Rape, 88 Calif. L. Rev. 1373, 1375
(2000). Federal law also persisted in attaching
different legal consequences to marriage for men and
women. For example, across a variety of federal
programs, benefits were provided to wives on the
assumption that they were financially dependent on
their husbands, but denied to husbands altogether
unless they could prove financial dependence on their
wives.
See, e.g., Goldfarb, 430 U.S. at 201;
Wiesenfeld, 420 U.S. at 643-44; Frontiero, 411 U.S. at
678; Kalina v. R.R. Ret. Bd., 541 F.2d 1204, 1209 (6th
Cir. 1976), aff’d, 431 U.S. 909 (1977). The Social
Security Act presumed income from a trade or
business in a community property state to be the
husband’s income. See Carrasco v. Sec’y of Health,
Educ. & Welfare, 628 F.2d 624, 627, 629 (1st Cir.
1980).
Federal bankruptcy law provided that
alimony and support debts owed to a wife were
nondischargeable, while the same debts owed to a
husband lacked such protection. See In re Crist, 632
F.2d 1226, 1229, 1232-33 (5th Cir. 1980).
In the intervening years, courts applying
heightened scrutiny have played a key role in
dismantling the legal machinery that enforces
-29separate gender roles within marriage, based on the
principle that such legally enforced roles do not
properly reflect individuals’ “ability to perform or
contribute to society” and thus violate “‘the basic
concept of our system that legal burdens should bear
some relationship to individual responsibility.’”
Frontiero, 411 U.S. at 686 (quoting Weber v. Aetna
Cas. & Sur. Co., 406 U.S. 164, 175 (1972)); see also
Kirchberg v. Feenstra, 450 U.S. 455, 458-61 (1981)
(affirming invalidation of Louisiana statute giving
the husband as “head and master” the right to sell
marital property without wife’s consent); Wengler v.
Druggists Mut. Ins. Co., 446 U.S. 142, 147-48 (1980)
(rejecting stereotypes regarding wives’ financial
dependency in the context of differential workers’
compensation benefits); Westcott, 443 U.S. at 89
(finding unconstitutional a statute providing benefits
only to unemployed fathers, rather than to both
fathers and mothers); Orr, 440 U.S. at 281-83
(rejecting stereotypes regarding wives’ financial
dependency in the alimony context). As a result of
these decisions and attendant legislative reforms,
laws relating to marriage have become almost wholly
gender-neutral—apart from their frequent exclusion
of same-sex couples. See generally Latta, 771 F.3d at
490 (concurring opinion); Perry v. Schwarzenegger,
704 F. Supp. 2d 921, 993 (N.D. Cal. 2010), aff’d sub
nom. Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012),
vacated and remanded sub nom. Hollingsworth v.
Perry, 133 S. Ct. 2652 (2013); Susan Frelich
Appleton, Missing in Action? Searching for Gender
Talk in the Same-Sex Marriage Debate, 16 Stan. L. &
Pol’y Rev. 97, 113-14 (2005). Men and women
entering into marriage today have the liberty under
law to determine for themselves the responsibilities
-30each will shoulder, regardless of whether these roles
conform to traditional arrangements.
2.
Like
Other
Marriage
Laws
Enforcing
Gender-Based
Expectations,
Laws
Excluding
Same-Sex Couples From Marriage
Cannot
Survive
Constitutional
Scrutiny.
Although the law no longer expressly imposes
separate roles on married men and women, marriage
laws that discriminate based on sexual orientation
continue to rest on gender stereotypes about the
proper preferences, relationship roles, and capacities
of men and women that do not reflect the realities of
many individuals’ lives. For example, in Tennessee,
the challenged marriage ban expressly delineates
families headed by opposite-sex couples as “the
fundamental building block of our society,” Tenn.
Code Ann. § 36-3-113(a), and the State has asserted
the ban is justified by the “promotion of family
continuity and stability.” Brief for Appellant at 25,
Tanco v. Haslam, No. 14-5297 (6th Cir. May 7, 2014).
In passing Kentucky’s marriage law, legislators
argued that “[t]he sacred institution of marriage joins
together a man and a woman for the stability of
society and for the greater glory of God.” See Pl.’s
Mem. in Supp. of Mot. for Summ. J. at 4, Bourke v.
Beshear, 3:13-CV-750-JGH (W.D. Ky. Dec, 16, 2013).
Similarly, in passing Ohio’s first marriagerecognition ban, legislators argued it was necessary
to uphold “a divine institution that’s been given to us
by God” and that “males and females coming together
in traditional marriage create the basic unit, the
building blocks of our society.” Expert Decl. of Susan
-31J. Becker in Supp. of Pl.’s Mot. for Declaratory J. and
Permanent Inj. ¶ 40, Obergefell v. Wymyslo, No. 1:13cv-501 (S.D. Ohio Oct. 11, 2013) (ECF No. 41-1)
(internal quotation marks omitted).
Such
justifications reflect the gender-stereotyped notion
that the stability of marriage depends on the
separate roles played by women and men, and
require skeptical examination under the Equal
Protection Clause.
Respondents have argued that procreation is a
principal reason for marriage and will not be
furthered by recognition of same-sex marriages. See
Brief for Appellant at 52, DeBoer v. Snyder, No. 141341 (6th Cir. May 7, 2014); Brief for Appellant at 1112, Bourke v. Beshear, No. 14-5291 (6th Cir. May 7,
2014); Brief for Appellant at 24-26, Tanco v Haslam,
No. 14-5297 (6th Cir. May 7, 2014). Tennessee, for
example, has argued that “marriage can simply not
be divorced from its traditional procreative purposes”
and that the ban on marriage between same-sex
couples serves to “ensure that procreation occur only
within the confines of a stable family unit.” Defs.’
Resp. in Opp’n to Pls.’ Mot. for Preliminary Inj. at 1417, 24, Tanco v. Haslam, No. 3:13-cv-01159 (M.D.
Tenn. Dec. 6, 2013). Similarly, Kentucky asserts that
recognizing marriages only between different-sex
couples is justified because only “[t]raditional manwoman couples” can procreate. Brief for Appellant at
21, Bourke, No. 14-5291 (6th Cir. May 7, 2014); see
also Brief of Amicus Citizens for Community Values
at 15, Obergefell v. Wymyslo, No. 14-3057 (6th Cir.
Apr. 17, 2014) (arguing that procreation is the
primary reason for marriage and that granting
recognition to marriages between same-sex couples
will diminish responsible procreation).
-32Same-sex couples, of course, may become parents
through
adoption,
assisted
reproduction,
or
surrogacy, or they may raise biological children from
prior different-sex relationships. Moreover, as this
Court has recognized, marriage has many other core
purposes beyond procreation, including emotional
support, public commitment, and personal dedication,
as well as tangible benefits such as Social Security
and property rights. See Turner v. Safley, 482 U.S.
78, 95-96 (1987) (holding prison inmates must be
allowed to marry, even if marriages might never be
consummated). Cases holding that married couples
have a right to use contraception, e.g., Griswold v.
Connecticut, 381 U.S. 479, 485-86 (1965), and that
women cannot be required to notify their spouses to
obtain an abortion, Casey, 505 U.S. at 898, further
illustrate that marriage and procreation are not
coextensive.
See generally id. at 849 (“[T]he
Constitution places limits on a State’s right to
interfere with a person’s most basic decisions about
family and parenthood . . . as well as bodily
integrity . . . .”). Indeed, a description of marriage as
based primarily on procreation is one that most
married couples would fail to recognize.
Relatedly, the contention that permitting same-sex
couples to marry could harm child welfare is based on
pervasive gender stereotypes. See Bostic, 760 F.3d at
383-84; Latta, 771 F.3d at 491-92 (concurring
opinion); see also Brief for Appellant at 51, DeBoer,
No. 14-1341 (6th Cir. May 7, 2014) (allowing samesex marriage would undermine child welfare because
“no institution in society would reinforce the idea . . .
that mothers and fathers have, in general, different
parenting strengths”). Courts repeatedly have struck
down laws based on the assumption that mothers and
-33fathers play categorically and predictably different
roles as parents, rejecting “any universal difference
between maternal and paternal relations at every
phase of a child’s development.”
Caban v.
Mohammed, 441 U.S. 380, 389 (1979); see also
Wiesenfeld, 420 U.S. at 652 (“It is no less important
for a child to be cared for by its sole surviving parent
when that parent is male rather than female.”);
Stanley v. Illinois, 405 U.S. 645, 646-47, 649 (1972)
(finding unconstitutional a state’s presumption that
single fathers were unfit to raise their children where
single mothers were presumed fit). Gender-based
generalizations about how mothers and fathers
typically parent are an insufficient basis for
discriminatory laws, even when these generalizations
are “not entirely without empirical support.”
Wiesenfeld, 420 U.S. at 645. Here, empirical evidence
does not support the notion that different-sex couples
are better parents than same-sex couples; indeed,
research supports the conclusion that “[c]hildren
raised by gay or lesbian parents are as likely as
children raised by heterosexual parents to be healthy,
successful and well-adjusted”—a finding that “is
accepted beyond serious debate in the field of
developmental psychology.” Perry, 704 F. Supp. 2d at
980.10
While evidence does not support the notion that
permitting same-sex couples to marry will harm
children, banning same-sex couples from marrying or
preventing
recognition
of
same-sex
couples’
10 Like the Perry court, the trial court in the instant case DeBoer
v. Snyder, 973 F. Supp. 2d 757 (E.D. Mich. 2014), also held a
bench trial on this question and found an overwhelming
consensus among scholars that there is no difference in quality
of parenting between heterosexual and gay parents.
-34marriages does inflict serious harms on same-sex
couples and their children. These harms include not
only denial of substantial tangible benefits and
responsibilities, but also dignitary harms of
constitutional dimension. Windsor, 133 S. Ct. at
2694-95 (explaining how the federal government’s
refusal to recognize same-sex couples’ marriages
“demeans” such couples and “humiliates” their
children). Windsor instructs that in evaluating for
constitutional
purposes
the
harms
that
discriminatory marriage laws inflict, dignitary harms
are of great moment.
One of the most serious ways in which laws that
exclude same-sex couples from marriage demean
lesbian, gay, and bisexual persons is by enforcing
gender-based expectations in the roles that men and
women play in families. State enforcement of such
stereotypes and expectations—through exclusionary
marriage laws and other discriminatory government
actions—communicates to lesbian, gay, and bisexual
persons, their children, and their communities that
there is something wrong with a core part of their
identity and being.
Such government actions
communicate that lesbian, gay, and bisexual persons
do not measure up to what a man or a woman should
be and that their most important relationships are
“less worthy,” Windsor, 133 S. Ct. at 2696, than the
relationships and marriages of different-sex couples.
Such discrimination cannot survive heightened
scrutiny.
IV.
CONCLUSION
For the foregoing reasons, Amici Curiae urge this
Court to hold that laws that classify based on sexual
orientation are subject to heightened scrutiny under
-35the Equal Protection Clause and that the challenged
laws cannot withstand this scrutiny, and to reverse
the judgment of the Court of Appeals upholding the
challenged provisions.
Respectfully submitted,
EMILY J. MARTIN, Counsel of
Record
MARCIA D. GREENBERGER
ELIZABETH JOHNSTON
NATIONAL WOMEN’S LAW
CENTER
11 Dupont Circle, NW, Suite
800
Washington, D.C. 20036
(202) 588-5180
emartin@nwlc.org
NAN D. HUNTER
THE WILLIAMS INSTITUTE
UCLA SCHOOL OF LAW
Box 951476
Los Angeles, CA 90095-1476
(310) 267-4382
Counsel for Amici Curiae National Women’s Law Center, the Williams
Institute UCLA School of Law, California Women Lawyers, Center for
Reproductive Rights, Connecticut Women’s Education and Legal Fund,
Equal Rights Advocates, Michigan Association for Justice, National
Association of Women Lawyers, National Partnership for Women and
Families, Women’s Bar Association of the District of Columbia, Women’s
Bar Association of Illinois, Women’s Law Center of Maryland and
Women’s Lawyer Association of Michigan
-36BARBARA B. BROWN
STEPHEN B. KINNAIRD
JENNIFER S. BALDOCCHI
JEFFREY S. HABER
PAUL HASTINGS LLP
875 15th Street, N.W.
Washington, D.C. 20005
(202) 551-1700
Counsel for Amici Curiae National Women’s Law Center, the Williams
Institute UCLA School of Law, California Women Lawyers, Center for
Reproductive Rights, Connecticut Women’s Education and Legal Fund,
Michigan Association for Justice, National Association of Women
Lawyers, National Partnership for Women and Families, Women’s Bar
Association of the District of Columbia, Women’s Bar Association of
Illinois, Women’s Law Center of Maryland and Women’s Lawyer
Association of Michigan
March 2015
APPENDIX
-1aAPPENDIX
National Women’s Law Center
The National Women’s Law Center is a nonprofit
legal advocacy organization dedicated to the
advancement and protection of women’s legal rights
and opportunities since its founding in 1972. The
Center focuses on issues of key importance to women
and their families, including economic security,
employment, education, health, and reproductive
rights, with special attention to the needs of lowincome women, and has participated as counsel or
Amicus Curiae in a range of cases before the
Supreme Court and Federal Courts of Appeals to
secure the equal treatment of women under the law,
including numerous cases addressing the scope of the
Constitution’s guarantees of equal protection of the
laws. The Center has long sought to ensure that
rights and opportunities are not restricted for women
or men on the basis of gender stereotypes and that all
individuals enjoy the protection against such
discrimination promised by the Constitution.
Williams Institute Scholars of Sexual
Orientation and Gender Law
The Amici professors of law are associated with
the Williams Institute, an academic research center
at UCLA School of Law dedicated to the study of
sexual orientation and gender identity law and public
policy. These Amici have substantial expertise in
constitutional
law
and
equal
protection
jurisprudence,
including
with
respect
to
discrimination based on sex, sexual orientation, and
-2agender stereotypes.
Their expertise thus bears
directly on the constitutional issues before the Court
in these cases.
These Amici are listed below.
Institutional affiliations are listed for identification
purposes only.



Christine A. Littleton

Vice Provost for Diversity and Faculty
Development, UCLA;

Professor of Law and Gender Studies,
UCLA School of Law;

Former Faculty Chair and Faculty
Advisory Committee Member, The
Williams Institute.
Nancy Polikoff

Professor of Law, American University
Washington College of Law;

2012 Visiting McDonald/Wright Chair of
Law, UCLA School of Law;

Former Faculty Chair & Faculty
Advisory Committee Member, The
Williams Institute.
Vicki Schultz

Ford Foundation Professor of Law and
Social Sciences, Yale Law School;

2011 Visiting McDonald/Wright Chair of
Law, UCLA School of Law;
-3a



Former Faculty Chair & Faculty
Advisory Committee Member, The
Williams Institute.
Brad Sears

Assistant Dean of Academic Programs
and Centers, UCLA School of Law;

Roberta A. Conroy Scholar of Law and
Policy, The Williams Institute;

Executive Director, The Williams
Institute.
Seana Shiffrin

Professor of Philosophy, UCLA School of
Law;

Pete Kameron Professor of Law and
Social Justice, UCLA School of Law;

Faculty Advisory Committee Member,
The Williams Institute.
Jonathan D. Varat

Professor of Law Emeritus, UCLA
School of Law;

Dean Emeritus, UCLA School of Law;

Faculty Advisory Committee Member,
The Williams Institute.
-4a
Adam Winkler

Professor of Law, UCLA School of Law;

Faculty Advisory Committee Member,
The Williams Institute.
California Women Lawyers
California Women Lawyers (“CWL”) has
represented the interests of more than 30,000 women
in all facets of the legal profession since 1974. CWL’s
mission includes advancing women’s interests,
extending universal equal rights and eliminating
bias. In pursuing its values of social justice and
gender equality, CWL often joins amici briefs
challenging
discrimination
by
private
and
government entities, weighs in on proposed
legislation, and implements programs fostering the
appointment of women and other qualified candidates
to the bench.
Center for Reproductive Rights
The Center for Reproductive Rights (the “Center”)
is a global advocacy organization that uses the law to
advance reproductive freedom as a fundamental right
that all governments are legally obligated to respect,
protect, and fulfill. In the U.S., the Center’s work
focuses on ensuring that all women have access to a
full spectrum of high-quality reproductive healthcare
services. Since its founding in 1992, the Center has
been actively involved in nearly all major litigation in
the U.S. concerning reproductive rights, and its
attorneys have regularly appeared before this Court.
As a rights-based organization, the Center has a vital
-5ainterest in protecting individuals endeavoring to
exercise their fundamental rights from restrictions on
the basis of gender stereotypes. Using its expertise in
U.S. constitutional law, discrimination, and equal
protection jurisprudence, the Center seeks to
highlight why discrimination based on gender
classifications or gendered stereotypes should be
subject to heightened scrutiny.
Connecticut Women’s Education and Legal
Fund
The Connecticut Women’s Education and Legal
Fund (CWEALF) is a non-profit women’s rights
organization dedicated to empowering women, girls
and their families to achieve equal opportunities in
their personal and professional lives.
CWEALF
defends the rights of individuals in the courts,
educational institutions, workplaces and in their
private lives. Since its founding in 1973, CWEALF
has provided legal education and advocacy and
conducted research and public policy work to advance
women’s rights.
As one of the leaders in
Connecticut’s fight for marriage equality and
subsequent victor, CWEALF’s research and advocacy
includes the role of gender stereotypes and the
prevention of discrimination based on gender, sexual
orientation, and gender identity.
-6aEqual Rights Advocates
Equal Rights Advocates (“ERA”) is a national
nonprofit civil rights advocacy organization based in
San Francisco that is dedicated to protecting and
expanding economic justice and equal opportunities
for women and girls. Since its founding in 1974, ERA
has sought to end gender discrimination in
employment and education and advance equal
opportunity for all by litigating historically
significant gender discrimination cases in both state
and federal courts, and by engaging in other
advocacy. ERA recognizes that women historically
have been the targets of legally sanctioned
discrimination and unequal treatment, which often
have been justified by or based on stereotypes and
biased assumptions about the roles that women (and
men) can or should play in the public and private
sphere, including within the institution of marriage.
ERA is concerned that if laws such as those
challenged in this case are allowed to stand, millions
of gay, lesbian, and bisexual persons in the United
States will be deprived of the fundamental liberty to
choose whether and whom they will marry—a
deprivation that offends the core principle of equal
treatment under the law.
-7aMichigan Association for Justice
The Michigan Association for Justice (MAJ) is an
organization of Michigan lawyers engaged in
litigation and trial work.
The mission of the
Michigan Association for Justice is to promote a fair
and effective justice system. MAJ recognizes an
obligation to assist this Court on important issues of
law that would substantially affect the orderly
administration of justice in the trial courts of the
United States of America, including the Sixth Circuit.
This case presents important issues of law, the
resolution of which is important to civil and
constitutional rights, and will have a direct and
substantial impact on MAJ members’ clients whose
rights may be challenged by these issues, requiring
heightened scrutiny by the Courts.
National Association of Women Lawyers
The National Association of Women Lawyers
(“NAWL”) is the oldest women’s bar association in the
United States. Founded in 1899, the association
promotes not only the interests of women in the
profession but also women and families everywhere.
That has included taking a stand opposing gender
stereotypes in a wide range of areas, including
Title IX and Title VII. NAWL is proud to have been a
signatory to the civil rights amicus brief in the 2003
case of Goodridge v. Department of Public Health,
where the Massachusetts Supreme Judicial Court
found that denial of marriage licenses to same sex
couples violated state constitutional guarantees of
liberty and equality. Now, over a decade later,
NAWL is proud to join in this brief and stand, once
again, for marriage equality.
-8aNational Partnership for Women & Families
The National Partnership for Women & Families
is a nonprofit, nonpartisan organization that uses
public education and advocacy to promote fairness in
the workplace, quality health care for all, and policies
that help women and men meet the dual demands of
work and family. Founded in 1971 as the Women’s
Legal Defense Fund, the National Partnership has
been instrumental in many of the major legal
changes that have improved the lives of women and
their families. The National Partnership has devoted
significant resources to combating sex, race, and
other forms of invidious discrimination and has filed
numerous briefs as Amicus Curiae in the Supreme
Court and in the Federal Courts of Appeals to protect
constitutional and legal rights.
Women’s Bar Association of the District of
Columbia
The Women’s Bar Association of the District of
Columbia (WBA) is one of the oldest and largest
voluntary
bar
associations
in
metropolitan
Washington, D.C. WBA’s mission is to maintain the
honor and integrity of the profession; promote the
administration of justice; advance and protect the
interests of women lawyers; promote their mutual
improvement; and encourage a spirit of friendship
among our members. The WBA is dedicated to
advance women’s rights in furtherance of an equal
and just society.
-9aWomen’s Bar Association of Illinois
The Women’s Bar Association of Illinois (WBAI)
was founded in 1914 to promote, foster, advance and
protect the interest and welfare of women and women
lawyers. An essential element of the WBAI’s mission
is to aid in the enactment of legislation to protect the
interests and rights of women. The WBAI has long
advocated for individual rights and liberties including
the elimination of discriminatory laws predicated
upon gender stereotypes and gender based
expectations. The WBAI joins the brief as amicus
curiae before this Honorable Court on behalf of the
parties whose rights are in jeopardy.
Women’s Law Center of Maryland
The Women’s Law Center of Maryland, Inc. is a
nonprofit, public interest, membership organization
of attorneys and community members with a mission
of improving and protecting the legal rights of
women. Established in 1971, the Women’s Law
Center achieves its mission through direct legal
representation, research, policy analysis, legislative
initiatives, education and implementation of
innovative legal-services programs to pave the way
for systemic change. The Women’s Law Center has
dedicated substantial advocacy efforts to reform
family law through its Kaufman Center for Family
Law. The Women’s Law Center is participating as an
amicus in Obergefell v. Himes because it supports the
right of same sex couples to marry. This is a
necessary and appropriate expansion of family law
which makes the rights, benefits and responsibilities
of marriage available to all women, including
lesbians who wish to marry, and ensure that those
-10arights are not restricted on the basis of gender
stereotypes.
Women Lawyers Association of Michigan
Women Lawyers Association of Michigan
(“WLAM”) was founded in 1919. WLAM works to
secure the rights of women in society. The mission
statement for WLAM is to advance the interests of
women members of the legal profession, to promote
improvements in the administration of justice, and to
promote equality and social justice for all people.
WLAM has participated as Amicus Curiae in cases to
secure equal treatment of women under the law.
With more than 700 member attorneys, judges and
law students, WLAM has substantial expertise
related to equal protection, including discrimination
based on sex.
WLAM has an interest in the
continued
recognition
by
Courts
that
sex
classifications warrant heightened scrutiny under the
Equal Protection Clause of the Constitution. WLAM
supports the Amicus Brief provided by the National
Women’s Law Center to the extent that all people
should be afforded the rights provided under the
Equal protection Clause of the United States
Constitution.